Citation Nr: 0702390
Decision Date: 01/26/07 Archive Date: 01/31/07
DOCKET NO. 04-35 337 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased rating from an original grant
of service connection for asthma, rated as 30 disabling.
2. Entitlement to an increased (compensable) rating from an
original grant of service connection for migraines.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from April 1973 to February
1976.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas.
In November 2006, the veteran presented testimony before the
undersigned Veterans Law Judge in Waco, Texas; a transcript
of that hearing is of record. During the hearing, the
veteran submitted additional medical evidence with a waiver
of initial RO consideration. The Board accepts the
additional evidence for inclusion into the record on appeal.
See 38 C.F.R. § 20.800 (2006).
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claims on appeal has been accomplished.
2. The medical evidence of record demonstrates that the
veteran's asthma is characterized by FVC no lower than 74
percent predicted, FEV-1 no lower than 66 percent of
predicted, FEV-1/FVC no lower than 68 percent of predicted,
without the necessity of at least monthly visits to a
physician for required care of exacerbations, or;
intermittent (at least three per year) courses of systemic
(oral or parenteral) corticosteroids.
3. The veteran's migraine headaches are controlled with
medication and have not been of a prostrating nature.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent
for asthma have not been met. 38 U.S.C.A. § 1155 (West 2002
& Supp. 2005); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.97, Diagnostic
Code 6602 (2006).
2. The criteria for a compensable initial evaluation for
migraine headaches have not been met. 38 U.S.C.A. § 1155
(West 2002 & Supp. 2005); 38 C.F.R. §§ 4.20, 4.124a,
Diagnostic Code 8100 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to this appeal. To implement the provisions of
the law, the VA promulgated regulations codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and
implementing regulations provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also includes new
notification provisions. The record reflects that on several
occasions, the veteran was provided with information
regarding VCAA, including in June 2003 and June 2004. At her
hearing before the undersigned in November 2006, she
submitted additional evidence, and she also indicated being
scheduled for an examination within the near future.
However, in a January 2007 communication, the RO has
indicated that there is no additional evidence pertinent to
the issues on appeal.
The record shows the veteran has been adequately notified of
the information and evidence needed to substantiate her
claims. His service medical records and all identified and
authorized post-service medical records relevant to the
issues on appeal have been requested or obtained. Further
attempts to obtain additional evidence would be futile. The
Board finds the available medical evidence is sufficient for
an adequate determination. The duty to assist and duty to
notify provisions of the VCAA have been fulfilled.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a
claim. The veteran was provided with such notice in March
2006.
Increased Ratings
Disability ratings are rendered upon the VA's Schedule for
Rating Disabilities as set forth at 38 C.F.R. Part 4. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity in
civil occupations. The disability must be viewed in relation
to its history. 38 C.F.R. § 4.1. The higher evaluation
shall be assigned where the disability picture more nearly
approximates the criteria for the next higher evaluation. 38
C.F.R. § 4.7. While lost time from work related to a
disability may enter into the evaluation, the rating schedule
is "considered adequate to compensate for considerable loss
of working time from exacerbations proportionate" with the
severity of the disability. 38 C.F.R. § 4.1.
The United States Court of Appeals for Veterans Claims
(hereinafter, "Court") has held that, in a claim of
disagreement with the initial rating assigned following a
grant of service connection, such as the appeal in this case,
separate ratings can be assigned for separate periods of
time, based on the facts found. Fenderson v. West, 12 Vet.
App. 119 (1999).
In adjudicating the increased rating claim, the Board
determines whether (1) the weight of the evidence supports
the claim, or (2) the weight of the "positive" evidence in
favor of the claim is in relative balance with the weight of
the "negative" evidence against the claim: the appellant
prevails in either event. However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
Asthma
660
2
Asthma, bronchial:
Ratin
g
FEV-1 less than 40-percent predicted, or; FEV-1/FVC
less than 40 percent, or; more than one attack per
week with episodes of respiratory failure, or;
requires daily use of systemic (oral or parenteral)
high dose corticosteroids or immuno-suppressive
medications
100
FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC
of 40 to 55 percent, or; at least monthly visits to
a physician for required care of exacerbations, or;
intermittent (at least three per year) courses of
systemic (oral or parenteral) corticosteroids
60
FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC
of 56 to 70 percent, or; daily inhalational or oral
bronchodilator therapy, or; inhalational anti-
inflammatory medication
30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC
of 71 to 80 percent, or; intermittent inhalational
or oral bronchodilator therapy
10
Note: In the absence of clinical findings of asthma at time
of examination, a verified history of asthmatic attacks must
be of record.
38 C.F.R. § 38 C.F.R. § 4.97, Diagnostic Code 6602 (2006)
The veteran submitted her claim for service connection in
June 2003. In support of her claim, she submitted lay
statements from family members and friends, dated in July and
August 2003, attesting to the severity of her asthma. The
veteran was afforded a VA examination in April 2003.
Pulmonary function test (PFT) yielded the following results:
Pulmonary Function Test (PFT)
(% Predicted)
FEV-1
66
FVC (predicted)
74
DLCO (SB)
76
FEV-1/FVC
68
During a October 2003 VA outpatient visit, a PFT was
performed with the following results:
Pulmonary Function Test (PFT)
(% Predicted)
FEV-1
65
FVC (predicted)
70
DLCO (SB)
85
FEV-1/FVC
--
Max exercise. capacity<15 ml/kg/min O2
consumption
--
During a May 2004 VA outpatient visit, a PFT was performed
with the following results:
Pulmonary Function Test (PFT)
(% Predicted)
FEV-1
71
FVC (predicted)
75
DLCO (SB)
85
FEV-1/FVC
--
Max exercise. capacity<15 ml/kg/min O2
consumption
--
The examiner remarked that there was no significant
bronchodilator response.
The veteran was afforded another PFT in November 2004, with
these results:
Pulmonary Function Test (PFT)
(% Predicted)
FEV-1
78
FVC (predicted)
78
DLCO (SB)
--
FEV-1/FVC
76
Max exercise. capacity<15 ml/kg/min O2
consumption
--
On November 9, 2004, she was afforded another PFT, with the
following results:
Pulmonary Function Test (PFT)
(% Predicted)
FEV-1
72
FVC (predicted)
69
DLCO (SB)
--
FEV-1/FVC
78
Max exercise. capacity<15 ml/kg/min O2
consumption
--
Outpatient treatment records over the course of the appeal
period reflect that the veteran presented on occasion with
wheezing and shortness of breath. She was placed on
corticosteroid inhalers. In February and May 2005, she was
placed on oral corticosteroids. Outpatient treatment records
provided since the last examination do not suggest any
worsening of the underlying service connected asthma.
Based on a review of the records, there is no basis for a
higher rating. A 60 percent rating would require FFT results
to be within the following ranges: FEV-1 of 40- to 55-
percent predicted, or; FEV-1/FVC of 40 to 55 percent. None
of the test results fall within this range. In the absence
of test results compatible with the criteria for a higher
rating, it can also be shown that the veteran has had at
least monthly visits to a physician for required care of
exacerbations, or; intermittent (at least three per year)
courses of systemic (oral or parenteral) corticosteroids.
Once again, while the veteran may attend the VA pulmonary
clinic on a regular basis, perhaps even monthly, most of the
time the visits are not for required care of exacerbations,
nor has it been shown that she has been prescribed oral or
parenteral corticosteroids three times in any year.
Accordingly, the preponderance of the evidence is against an
increased evaluation for service connected asthma. Even
affording the benefit of the doubt, there is no evidence to
support the conclusion that this disability more nearly meets
the criteria for any higher evaluation under either the
rating criteria at any point during the evaluation period.
Migraine Headaches
810
0
Migraine:
Ratin
g
With very frequent completely prostrating and
prolonged attacks productive of severe economic
inadaptability
50
With characteristic prostrating attacks occurring
on an average once a month over last several months
30
With characteristic prostrating attacks averaging
one in 2 months over last several months
10
With less frequent attacks
0
38 C.F.R. § 4.124a, Diagnostic Code 8100 (2006)
The veteran maintains that a higher rating is warranted for
her migraine headaches. In support of her claim, she
submitted lay statements from family members and friends,
dated in July and August 2003, attesting to the severity of
her headaches.
Outpatient treatment records reflect that migraine headaches
are adequately controlled by medication. The veteran was
afforded a VA examination in November 2004, at which time she
indicated that she experienced headaches approximately 3
times per week and that the pain is severe but could be
aborted if she takes Midrin right away. In March 2006, she
reported the absence of any complaints of migraine
exacerbations. There is no evidence to support
manifestations of characteristically prostrating attacks,
and, accordingly, the preponderance of the evidence is
against any higher evaluation.
Because the preponderance of the evidence is against the
claims, the benefit of the doubt doctrine is not for
application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v.
Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule
applies only when the positive and negative evidence renders
a decision "too close to call").
There is no competent evidence of record which indicates that
the veteran's disabilities have caused marked interference
with employment beyond that which is contemplated under the
schedular criteria, or that there has been a level of
inpatient care warranting special consideration. Thus, there
is no basis for consideration of an extraschedular evaluation
under the provisions of 38 C.F.R. § 3.321(b)(1). Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the
evidence of record to indicate that the application of the
regular schedular standards is impractical in this case. See
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996).
ORDER
Entitlement to increased evaluation for asthma is denied.
Entitlement to increased evaluation for migraine headaches is
denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs